The voice for change

Centuries ago, in a much more conservative world driven by monarchy and totalitarianism the British Chief Justice Sir Matthew Hale said, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract” (Rath n.d.). In the same context, in 2015 Maneka Gandhi who is the Indian Union Cabinet Minister for Women and Child Development while answering a question at the Rajya Sabha said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc” (Roy 2016). After years, of being conditioned by modernisation in all spheres the deep-rooted patriarchal beliefs have remained unchanged. This statement has not only led to a considerable amount of disappointment but also validates the existing customs and beliefs which legitimise the rape of a spouse.

Background to the controversy

Almost one out of two women falling within the age group of 15-49 have experienced domestic violence of mental and physical form at the hands of their husbands. It has been reported that almost 19 percent of women have faced lifelong episodes of sexual violence (Shagun Sabarwal n.d.). In the present day, studies indicate that between 10 and 14 percent of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25 percent of rapes committed. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 years have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husband’s families. 56 per cent of Indian women believed occasional wife-beating to be justified. The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex is an obligation in a marriage and a taboo in the society hence there is a chronic lack of awareness among the people as people do not talk about it. In a fast modernising society the one which is building by imitating the west, the idea of casual sex is a monopoly of the patriarch. Women engaged in casual sex are regarded as filthy and impure. The status of women is contentious to the norms set by the society which any woman should conform to in order to be accepted in society such has been the sermon of the existing patriarchy.

In India, the 2013 amendment to the Criminal Law increased the age of consent to 18 years which means that any sexual advances over a minor within or outside marriage, with or without consent will be considered as rape. It is true that in rural India girls get married in their early teens and this trajectory stems from the conception that a girl child is a curse on the family. Research in this area also indicates that the husband’s reaction towards dowry during marriage often lead to a situation of physical violence in the marriage. Three important characteristics of the husband which determine their character are years of schooling completed, alcohol use and reaction to the dowry (Shagun Sabarwal n.d.). In pockets where these indicators show less progress are the areas prone to accepting and practising social violence. In the case of women, it was found that factors like financial status, freedom of movement and level of autonomy in the household. Financial autonomy assessed whether or not the respondents was allowed to set aside money for their use or had the power to make decisions regarding household expenditure. Freedom of movement indicated whether or not the person had the liberty to travel on her own or needed permission in order to venture out. For household decision-making autonomy, three items were considered. Respondents were asked whether they took decisions on the following, seeking health care, purchasing, and visiting relatives and friends. In most cases the responses were negative. Sneha’s Crisis Counselling Centre, an NGO in Dharavi, Mumbai, recorded 664 cases of domestic violence in 2015, 159 women also reported among other issues, marital rape. At the counselling centres at KEM and Sion hospitals, among the 218 cases of domestic violence received in 2015, 64 women said that they faced marital rape (Srivastava 2016).

A study was conducted with eight states: Punjab, Haryana, Uttar Pradesh, Rajasthan, Gujarat, Maharashtra, Madhya Pradesh and Orissa. It covered 9,205 men and 3158 women aged 18-49 and the sample was representative across caste, religious and income groups. The National Family Health Survey report showed that vast sexual violence was reported by women within their marriage. The trend of marital rape in India has been catastrophic and the worse has been since there is no law criminalising the act.

Debate over Marital Rape

Marriage is still perceived as a carte blanche of sexual intercourse in India. Most marriages in both rural and urban India take place against the will of the two individuals. In a country like India which is a manifestation of diverse culture and religion, there is a constant clash between the uniformity induced by the state and the diversity generated by the various social groups. Despite being divided on customs and tradition, the status of women is derogatory across religious and caste/class boundaries. Except for certain tribal groups which are matriarchal societies and follow the matrilineal path of property transfer, the status of women is repressed. Thus in the main land mass of India, the story is different. Marriage in India is a sexual contract. It gives the man an implied consent to enter into such a contract with the woman engaged. Does the woman have a say in it? Is the woman’s right to reject sexual advances from the man accepted and respected? Is marriage a license to rape? The answers to above questions are in negative. Marriage, the way it is perceived in the Indian context is about giving ownership rights to the man over the woman and consequently over her body. The woman is treated as a property transferred from the house she was born in the house where she shall serve. And the act of dowry establishes the legitimacy of such a concept. This denies the woman any agency over her body, its sexuality and its reproductive function (Roy 2016). In a very conservative society like India where sex outside marriage is penalised and sex, in general, is a tabooed word, people are less aware of it and barely comfortable to express their woes of any kind related to sex. The taboo revolving around sex often forces men to enter into a bond of marriage for free access to physical consummation which puts women under threat. There is also a constant need by our society to induce within our minds an elevated value system which we should subscribe to. This elevated value system is far from reality, internalises moral policing, and disregards healthy interaction between opposite sexes. These factors contribute to the repression of feelings and emotions which further culminates in violence in the cruellest form.

Refusing to criminalise marital rape is to accept that the sexual coercion against a woman, so long as it is within a marriage will be endorsed by both the Government and society. If women are to wrest control of their lives they have to have the right to say no their husbands without being socially penalised for it. The myth of the ‘wifely duty’ and the ‘conjugal right’ must end because marital sex as all sex must be with mutual consent.

Our religion is not only conservative but also regressive. It does not allow women to visit a place of worship (especially mosques and temples) or be involved in any sacred rituals while she is menstruating, which demeans the status of women. These acts of disgrace propagate the power of masculinity and ownership by the male over society. In Islam women are not allowed to step inside a mosque, men are allowed to engage in a polygamous way of life which puts women from the first marriage at a vulnerable position with negative security in terms of finance and shelter. In Hindu religion, a woman is considered impure if widowed, she is forced to wear a number of symbols to prove to the world that she is married and the fact that she is another man’s property comes candidly, very well hidden under ‘marriage’. The constitution provides for equality before the law but there is a clash between the provisions of the constitution and the oppression of the religious fanatics. The existence of right-wing politics and the newly elected extreme right-wing political party legitimises the sanction of the religious fanatics.

The fate of Draupadi in Mahabharata as a woman who was never asked for her consent but married to the five brothers is narrated as an illustrious example of marital rape. The heroic act of winning the battle rinses the Pandavas off of the heinous crime they committed over their own wife because marriage is considered a sacred sanctity of love and respect. A society which draws from such myths is in itself the manifestation of patriarchy. The woman is supposed to understand and accept and play a limited role. Any woman who raises her voice and puts across her opinion is rebuked by the society till she has lost her voice or her ability to raise it.

Rape law reforms in India

In 1972, a 16-year-old tribal girl named Mathura was allegedly raped in a police station. Mathura’s family lodged a criminal complaint against two officers. The Supreme Court eventually threw out the case, saying Mathura’s body bore no outward signs of rape. The ruling sparked protests by women’s groups across the country. The movement led to amendments, in 1983, to the criminal law that dealt with rape. The changes included a new category of rape for offences committed when a victim is in custody of the state. In such a situation, the law said a court should presume a woman who says she did not consent is telling the truth. Previously the law was silent on the matter of rape in detention. The amendments also ruled that rape trials should be conducted as closed proceedings and banned the publication of victims’ identity. After the Nirbhaya incident in New Delhi, the rape laws became strict but marital law exemption has still not been abolished by the State.

The Indian State passed the Protection of Women from Domestic Violence Act in 2005. The definition of ‘domestic relationship’ is broad enough to cover all sorts of household structures. For example, live-in relationships when the couple is not married. The inclusion of this, as well as relationships which fall under categories of fraudulent or bigamous, has increased the ambit of the act extending protection to all those who are victims of sexual violence. In the twenty-first century, the definition of relationship has undergone a change, every relationship does not snowball into marriage. The fact that a piece of paper which declares two individuals married in front of the society cannot be the sanction behind providing immunity against sexual assault and rape. With regard to live-in relationships itself, in a distinctive judgement passed in the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors on 17th May 2010, it was decided that a child born out of a live-in relationship is entitled to property (the property owned by the parents, but not ancestral property) (Ravi 2016). Although this has more relevance to property ownership and the Hindu Marriage Act, it is gratifying to know that children born out relationships which are not akin to marriage can also have property rights. Furthermore, the Act also provides relief to domestic violence committed by both male and female relatives of the husband. This extensive reform in the laws for protection of women against domestic violence does not extend protection to particular victims of marital rape per se because not criminalising marital rape specifically means extending sanction to the concept that husbands have the ownership right over their wives and thus are at liberty to consummate conjugal relationship at their own discretion without the wife’s consent and on return the wife is expected to accept.

An attempt to reduce the suffering of women and relieve her from the painful environment is given under chapter XX-A of Indian Penal Code, 1860. Chapter XX-A of Indian Penal Code, 1860, refers to ‘cruelty by husband or relatives of husband’ and includes section 498-A. (Sharma n.d.) It states that if the husband or relative of the husband, subjects the woman to cruelty, it shall be punished with the imprisonment for a term extendable to three years and also be liable to fine.

Is Section 498 a shield or weapon? Explanation- For the purpose of this section, “cruelty” means-

(a) Any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with view to coercing her or any person related to her meet any unlawful demand for any person related to her to meet such demand” (Sharma n.d.)

This section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband but it still fails to draw a clear distinction between consensual sex in marriage and rape in marriage.

After the Delhi gang rape, petitions on the safety of women were made. These petitions established the need to make marital rape a criminal offence. It was recommended that forced sexual intercourse within marriage should be brought within the ambit of rape under Section 375 I.P.C. by deleting Exception 2. Similar reforms have been suggested but have been in the pipe for too long. (Srivastava 2016)

Conclusion

The law which gives immunity to women against harassment have become stronger then why is it still that the woman has to prove her innocence in order to find the guilty? The law definitely provides legal immunity to the victims but is helpless in front of the society. In this context the urban society might have undergone a change but the women in the rural part of the country live in darkness and despair. They need more economic power and political power. One way of giving them economic power is to legalise the dowry money and transform it from being an excessive amount paid to the groom’s family for marrying the girl to the girl’s security money which shall be used by her in times of need. Women, especially in the rural area need economic power not only because that will give them security against violence but because economic power is the right of every citizen. It is true that marriage is a bond built on trust and affection it is a social institution which provides legitimacy to the existing structure of society because society is built on institutions of family and marriage and to deny the existence of any of the institution would violate social norms. But that is not an explanation for a society to fail to look through the atrocities caused by these institutions. A social institution like marriage is not the end to the means. It is only a mean to provide a structure where law and order can function properly and the law is responsible for protecting its people. By not recognising marital rape as a crime the rule of law fails to protect the people and thus lose its legitimacy. Unless a crime like marital rape is criminalised under the Indian administration, development is marred by the iniquity of the society.

(Trisrota is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at trisrotadutta@nls.ac.in)